[Federal Register Volume 61, Number 168 (Wednesday, August 28, 1996)]
[Proposed Rules]
[Pages 44227-44230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22043]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 312

[INS No. 1702-96]
RIN 1115-AE02


Exceptions to the Educational Requirements for Naturalization for 
Certain Applicants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: The Immigration and Naturalization Service (the Service) is 
amending its regulation relating to the educational requirements for 
naturalization of eligible applicants. This is necessary to implement 
changes to section 312 of the Immigration and Nationality Act (the Act) 
as amended by the Technical Corrections Act of 1994. The amendment 
provides an exemption from the requirements of demonstrating an 
understanding of the English language, including an ability to read, 
write, and speak words in ordinary usage, and of demonstrating a 
knowledge and understanding of the fundamentals of the history, and of 
the principles and form of government of the United States, for certain 
applicants who are unable to comply with both requirements because they 
possess a ``physical or developmental disability'' or a ``mental 
impairment.''

DATES: Written comments must be submitted on or before September 27, 
1996.

ADDRESSES: Please submit written comments in triplicate to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS number 1702-96 
on your correspondence. Comments are available for public inspection at 
the above-noted address by calling (202) 514-3048 to arrange an 
appointment.

FOR FURTHER INFORMATION CONTACT: Craig S. Howie, Adjudications Officer, 
Adjudications and Nationality Division, Immigration and Naturalization 
Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone 
(202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

    Section 312 of the Act requires a person seeking naturalization as 
a citizen of the United States to demonstrate an understanding of the 
English language and a knowledge and understanding of the fundamentals 
of the history, and of the principles and form of government of the 
United States. On October 25, 1994, Congress amended section 312 of the 
Act, through the enactment of the Immigration and Nationality Technical 
Corrections Act of 1994 (Technical Corrections Act), Public Law 103-
416, 108 Stat. 4309, section 108(a)(4).
    Under the new subsection (b) of section 312 of the Act, certain 
persons are exempt from the English proficiency and history and 
government requirements of section 312(a) if they possess a ``physical 
or developmental disability'' or a ``mental impairment.''
    Congress did not specifically define the phrases ``physical and 
developmental disability'' or ``mental impairment'' in the Technical 
Corrections Act. However, Congress did provide limited guidance for 
defining

[[Page 44228]]

these terms in the Report of the House of Representatives Committee on 
the Judiciary, H.R. No. 103-387, November 20, 1993. The relevant 
comments, found on pages 5 and 6 of the report, read:

    The bill also provides a general waiver of all testing 
requirements for persons of any age who, because of ``physical or 
developmental disability or mental impairment,'' could not 
reasonably be expected to pass the test. This is not intended to 
include conditions that are either temporary or that have resulted 
from an individual's illegal use of drugs.
    An individual who is developmentally disabled is one who shows 
delayed development of a specific cognitive area of maturation, 
i.e., reading, language, or speech, resulting in intellectual 
functioning so impaired as to render the individual unable to 
participate in the normal testing procedures for naturalization. 
This is not an acquired disability, but one whose onset occurred 
prior to the 18th birthday. An individual who is mentally disabled 
is one for whom there is a primary impairment of brain function, 
generally associated with an organic basis upon which diagnosis is 
based, resulting in an impairment of intellectual functions, 
including memory, orientation or judgment. This definition does not 
include individuals whose mental disability is not the result of a 
physical disorder. An individual who is physically disabled is one 
who has a physical impairment that substantially limits a major life 
activity.

    It is clear that the amendment to section 312 is to exempt only 
those individuals who, because of their disability, cannot demonstrate 
the requisite literacy and knowledge as required under section 312 of 
the Act.
    On November 21, 1995, the Service provided policy guidance to its 
field offices with preliminary instructions for adjudication of 
naturalization applications based on the expanded exemptions provided 
under the Technical Corrections Act. The Service also provided 
preliminary definitions of the terms ``developmental disability,'' 
``physical disability,'' and ``mental impairment'' following the 
language in H.R. No. 103-387. Applicants seeking disability waivers 
were required to submit medical evidence (e.g., a one-page 
certification from a designated civil surgeon) with their N-400, 
Application for Naturalization, supporting their claim of disability.

Amendment of Existing Regulation

    In order to implement the changes to section 312 of the Act as 
mandated by the Technical Corrections Act, the Service is proposing to 
amend 8 CFR 312.1 and 312.2 to provide definitions of the terms 
``developmental disability,'' ``physical disability,'' and ``mental 
impairment,'' and to outline procedures for individuals who seek 
disability exemption pursuant to section 312(b)(1) of the Act.
    This proposed rule not only modifies the Service's current 
preliminary guidance to the field but also comports with existing 
Federal policies and regulations for implementing nondiscriminatory 
disability based programs as required under section 504 of the 
Rehabilitation Act of 1973, as amended by section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Act of 1978, and 28 CFR part 39. This proposed rule also provides that 
an exemption will be granted only to those individuals with 
disabilities who, because of the nature of their disability, cannot 
demonstrate the required understanding of the English language and 
knowledge of American history and government.
    The section 312(b) disability-exemption is not a blanket waiver 
from the testing requirements to be granted based solely on evidence of 
a disability. To interpret section 312(b) as a blanket exemption not 
only would have the tacit effect of perpetuating the negative 
stereotype that people with disabilities are unable to participate 
fully in mainstream activities, but also would be contrary to the 
requirements of section 504 of the Rehabilitation Act.
    All waiver eligibility determinations will be based on individual 
assessments by civil surgeons or qualified individuals or entities 
designated by the Attorney General, who determine that the applicant 
has a disability that renders the individual unable to demonstrate the 
English proficiency or knowledge required by this part or renders the 
individual unable, even with reasonable modifications, to participate 
in the testing procedures for naturalization.
    Pursuant to section 504 of the Rehabilitation Act of 1973, the 
Service will provide reasonable modifications in its testing procedures 
to enable naturalization applicants who have disabilities to 
participate in the process. Reasonable modifications may include 
providing wheelchair-accessible test sites, sign language interpreters, 
or brailled materials. In addition, modifications may be made in the 
test format or test administration procedures. An applicant will be 
deemed unable to participate in the testing procedures only in those 
situations where there are no reasonable modifications that would 
enable the applicant to participate.
    It will be the responsibility of the disabled person applying for 
naturalization to provide the documentation necessary to substantiate 
the claim for a disability-based exception. The Service has no desire 
for applicants with disabilities to submit extensive medical reports or 
medical background information regarding their condition. Since Service 
officers are not physicians and should not be placed in the position of 
making a medical determination, the Service is proposing use of civil 
surgeons for assessing the disability claimed by applicants. In 
addition, as reflected in the language of the proposed rule, the 
Service is considering use of qualified individuals or entities 
designated by the Attorney General to perform such assessments. The 
designees will review the necessary background medical reports, 
submitted by the applicant or the applicant's medical specialist. Civil 
surgeons not experienced in diagnosing developmental disabilities or 
other cognitive impairments shall be required to consult with 
professionals who are experienced in diagnosing cognitive impairments 
prior to making an eligibility determination. If the surgeon or 
designee is in agreement with the background information and has 
consulted with the necessary specialist, he or she will issue a one-
page certification, verifying the existence of a disability as defined 
under 8 CFR 312.1(b)(3) and 312.2(b)(1), and attesting to the 
applicant's inability to participate in the testing procedures required 
under section 312 of the Act. The Service fully intends to work with 
the civil surgeons and other qualified individuals or entities in 
developing guidance and procedures for the preparation of the 
certification needed by an applicant with a disability for this 
particular exception.

Request for Comments

    The Service is seeking public comments regarding this proposed 
rule. The Service is interested in public comment on the requirements 
for medical certifications. The Service also seeks public comment on 
the use of civil surgeons and on the circumstances under which the 
Service should consider use of qualified individuals or entities, other 
than civil surgeons, for disability determinations such as licensed 
physicians, other health care professionals, or other government or 
private entities designated by the Attorney General. It should also be 
noted that the Service is engaged in an additional revision of 8 CFR 
part 312. That revision will be issued as a proposed rule, also with a 
request for public comments.

[[Page 44229]]

Paperwork Reduction Act of 1995

    This proposed rule contains information collections which are 
subject to review by OMB under the Paperwork Reductions Act of 1995 
(Pub. L. 104-13). Therefore, the agency solicits public comments on the 
revised information collection requirements in order to: (1) Evaluate 
whether the proposed collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility; (2) evaluate the accuracy 
of the agency's estimate of the burden of the proposed collection of 
information, including the validity of the methodology and assumptions 
used; (3) enhance the quality, utility, and clarity of the information 
to be collected; and (4) minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
    The Service, in calculating the overall burden this requirement 
will place upon the public, estimates that approximately 300,000 
applicants may apply for an exemption from the requirements of section 
312. The Service also estimates that it will take each applicant three 
(3) hours to obtain the necessary attestation for an exemption. This 
amounts to 900,000 total burden hours.
    As required by section 3507(d) of the Paperwork Reduction Act of 
1995, the Service has submitted a copy of this proposed rule to OMB for 
its review of the revised information collection requirements. Other 
organizations and individuals interested in submitting comments 
regarding this burden estimate or any aspect of these information 
collection requirements, including suggestions for reducing the burden, 
should direct them to: Office of Information and Regulatory Affairs 
(OMB), 725 17th Street, NW, Washington, DC 20503, Attn: DOJ/INS Desk 
Officer, Room 10235.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation, and by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule has been drafted in a way to minimize the 
economic impact that it has on small business while meeting its 
intended objectives.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Under Executive Order 12866, section 6(a)(3) (B)-(D), this 
proposed rule has been submitted to the Office of Management and Budget 
for review. This rule is mandated by the 1994 Technical Corrections Act 
in order to afford certain disabled naturalization applicants an 
exemption from the educational requirements outlined in section 312 of 
the Immigration and Nationality Act.

Executive Order 12612

    The regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

List of Subjects in 8 CFR Part 312

    Citizenship and naturalization, Education.

    Accordingly, part 312 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 312--EDUCATIONAL REQUIREMENTS FOR NATURALIZATION

    1. The authority citation for part 312 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1423, 1443, 1447, 1448.

    2. In Sec. 312.1, paragraph (b)(3) is revised to read as follows:


Sec. 312.1  Literacy requirements.

* * * * *
    (b) * * *
    (3) The requirements of paragraph (a) of this section shall not 
apply to any person who is unable because of physical or developmental 
disability or mental impairment to demonstrate an understanding of the 
English language, as noted in paragraph (a) of this section. Physical 
disability, developmental disability, and mental impairment do not 
include conditions that are temporary or that have resulted from an 
individual's illegal drug use.
    (i) For the purposes of this paragraph (b)(3), the term:
    Developmental disability means an impairment, the onset of which 
precedes an individual's 18th birthday, that causes an individual to 
show delayed development of a specific cognitive area of maturation, 
i.e., reading, language or speech, resulting in intellectual 
functioning so impaired as to render an individual to be unable to 
demonstrate an understanding of the English language as required by 
this section, or that renders the individual unable to fulfill the 
requirements for English proficiency, even with reasonable 
modifications.
    Mental impairment means a primary impairment of brain function, 
generally associated with an organic basis upon which the diagnosis is 
based, resulting in an impairment of intellectual functions such as 
memory, orientation, or judgment that causes an individual to be unable 
to demonstrate an understanding of the English language required by 
this section, or that renders the individual unable to fulfill the 
requirements for English proficiency, even with reasonable 
modifications. This definition does not include a mental impairment 
that is not the result of a physical disorder.
    Physical disability means a physical impairment that substantially 
limits an individual's major life activities in a way that causes that 
individual to be unable to demonstrate an understanding of the English 
language required by this section, or that renders the individual 
unable to fulfill the requirements for English proficiency, even with 
reasonable modifications.
    (ii) [Reserved]
* * * * *
    3. Section 312.2 is amended by:
    a. Revising the last sentence of paragraph (a);
    b. Redesignating paragraph (b) as paragraph (c) and by
    c. Adding a new paragraph (b), to read as follows:


Sec. 312.2  Knowledge of history and government of the United States.

    (a) * * * A person who is exempt from the literacy requirement 
under Sec. 312.1(b) (1) and (2) must still satisfy this requirement.
    (b) Exceptions. (1) The requirements of paragraph (a) of this 
section shall not apply to any person who is unable because of physical 
or developmental disability or mental impairment to demonstrate a 
knowledge and understanding of the fundamentals of the history, and of 
the principles and form of government of the United States. Physical 
disability, developmental disability, and mental impairment do not 
include conditions that are

[[Page 44230]]

temporary, or that have resulted from an individual's illegal drug use.
    (i) For the purposes of this paragraph (b)(1), the term:
    Developmental disability means an impairment, the onset of which 
precedes an individual's 18th birthday, that causes an individual to 
show delayed development of a specific cognitive area of maturation, 
i.e., reading, language or speech, resulting in intellectual 
functioning so impaired as to render the individual unable to 
demonstrate the knowledge required by this section or that renders the 
individual unable to participate in the testing procedures for 
naturalization, even with reasonable modifications.
    Mental impairment means a primary impairment of brain function, 
generally associated with an organic basis upon which the diagnosis is 
based, resulting in an impairment of intellectual functions such as 
memory, orientation, or judgment that renders the individual unable to 
demonstrate the knowledge required by this section or that renders the 
individual unable to participate in the testing procedures for 
naturalization, even with reasonable modifications. This definition 
does not include a mental impairment that is not the result of a 
physical disorder.
    Physical disability means a physical impairment that substantially 
limits an individual's major life activities in a way that renders the 
individual unable to demonstrate the knowledge required by this section 
or that renders the individual unable to participate in the testing 
procedures for naturalization, even with reasonable modifications.
    (ii) [Reserved]
    (2) Medical certification. All persons applying for naturalization 
and seeking an exemption from the requirements of Sec. 312.1(a) and 
paragraph (a) of this section based on one of the enumerated disability 
exceptions must submit a certification from a designated civil surgeon 
(as defined in 42 CFR 34.2) or qualified individuals or entities 
designated by the Attorney General, attesting to the origin, nature, 
and extent of the person's medical condition as it relates to the 
disability exceptions noted under Sec. 312.1(b)(3) and paragraph (b)(1) 
of this section. The certification shall be a letter-sized one-page 
document, signed and dated by the civil surgeon or qualified 
individuals or entities. The civil surgeon, in particular those not 
experts in diagnosing developmental disabilities or other cognitive 
impairments, shall consult with other qualified physicians and 
psychologists prior to providing a certification, and may require the 
person seeking a disability-based exception to furnish evidence from a 
medical specialist or psychologist to support the person's claim of a 
qualifying disability. Any additional medical evidence required by a 
civil surgeon to assist in the evaluation shall only be for the use of 
the civil surgeon. The additional evidence shall not be attached to the 
civil surgeon's certification or filed with the applicant's application 
for naturalization as background or supporting documentation. An 
affidavit or attestation by the person, his or her relatives, or 
guardian on his or her medical condition is not a sufficient medical 
attestation for purposes of satisfying this requirement. The Service 
may consult with other Federal agencies in making its determination on 
whether an individual previously determined to be disabled by another 
Federal agency has a disability as defined in this section. This 
consultation may be used in lieu of the individual's medical 
certification.
* * * * *
    Dated: August 23, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-22043 Filed 8-26-96; 11:52 am]
BILLING CODE 4410-10-M